Congresswoman Michelle Lujan Grisham is asking the Social Security Administration to change a policy that states a couple must be married for nine months before a spouse is able to collect benefits from the deceased partner.
The letter stems from and specifically references an Albuquerque man who was denied federal benefits earned by his deceased husband.
Anthony Gonzales* married Mark Johnson in a downtown Albuquerque mass wedding ceremony** in August 2013 that celebrated the first day of legal same-sex marriage recognition in Bernalillo County.
Just six months later, Johnson died from cancer.
After his husband’s death, Gonzales applied for survivors benefits through the federal Social Security Administration. Typically, Social Security pays surviving spouses a portion of the deceased’s eligible income after they die.
But the federal agency denied Gonzales’ application on a technicality—his marriage to Johnson had only lasted six months before Johnson’s death. This didn’t account for the fact that Gonzales and Johnson were together for 16 years before New Mexico legally recognized same sex marriage.
“It’s a matter of fairness. I think Mark and I should be treated like any other couple,” Gonzales said. “We paid tens of thousands of dollars into the system.”
In her letter, Lujan Grisham points out that Gonzales and Johnson could not have legally married any earlier in New Mexico.
“We understand that the 9 month requirement is intended to reduce the likelihood that people would marry only to receive survivor benefits,” Lujan Grisham wrote. “However, Mr. Gonzales and his husband have demonstrated a life-long commitment to each other and were together for 16 years before they married.”
After Gonzales appealed the denial, he received a letter in January from Social Security informing him he and Johnson had other options for marriage. Social Security told Gonzales he could have traveled to another state to get married before same sex marriages were legal in New Mexico.
“Straight couples don’t have that requirement,” Gonzales said.
The Social Security Administration did not respond to emails and phone calls from NM Political Report seeking comment on Gonzales’ denial of benefits as of press time.
Kate Kendell, executive director of the National Center for Lesbian Rights, told NM Political Report her organization urges the Social Security Administration to accommodate couples like Johnson and Gonzales.
“The U.S. Supreme Court has held that denying same-sex couples marriage equality is unconstitutional,” Kendell said. “Denying these surviving [spouses’] benefits continues this unconstitutional discrimination, and the federal government has an obligation to remedy this.”
Lujan Grisham suggested making an exemption for “these unique cases” where it was impossible for a couple to be married for nine months or longer.
“Will SSA provide such an exception for these cases?” Lujan wrote. “If not, why not?”
Lujan Grisham’s letter is signed by 57 other members of Congress, including Democratic National Committee Chair Debbie Wasserman Schultz, a Florida congresswoman.
A spokesman for Lujan Grisham’s office said the congresswoman is willing to look into drafting legislation if the federal government doesn’t change the rule administratively.
Gonzales said even though the state recognizes his marriage, it isn’t going far enough.
“We’re still fighting for equal rights, Gonzales said. “It’s like we’re fighting a never-ending battle.”
* Anthony Gonzales is the uncle of NM Political Report Editor Matthew Reichbach. Reichbach sat out of the editorial process of this story to avoid conflicts of interest. Instead, Senior Reporter Joey Peters edited Reporter Andy Lyman’s story.
** The 2013 mass wedding ceremony was organized by ProgressNowNM, which helps find funding for NM Political Report. ProgressNowNM does not have any editorial input on this or any other story.